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Petitioner: Syed RIAZ ALI ZAIDI VS Respondent: GOVERNMENT OF THE PUNJAB through Chief Secretary, LahoreHonorable Justice Syed Mansoor Ali ShahMian Bilal Bashir,Mian Tariq Ahmed
2015 P L C (C.S.) 831
[Lahore]
Before Syed Mansoor Ali Shah, J
Syed RIAZ ALI ZAIDI
versus
GOVERNMENT OF THE PUNJAB through Chief Secretary, Lahore and 3 others
Writ Petition No.5406 of 2011, decided on 10th February, 2015.
(a) Constitution of Pakistan---
----Preamble & Arts. 175, 2A & 208---Independence of judiciary---Separation of powers between organs of the State---Nature and scope of relation between organs of the State---Scope and nature of judicial self-governance---Constitutional protection of financial autonomy and budgetary independence of the Superior Judiciary---Purpose, and necessity of institutional independence of the judicial branch---Concept described.
Delhi Judicial Service Association (Regd.) v. Government of Nct of Delhi and another 2000(88)DLT 710; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad 1997 PLC (C.S.) 137; Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375; Muhammad Yaqub Butt, Additional Registrar, Lahore High Court v. Government of the Punjab through Chief Secretary and another PLD 1992 Lah. 527; Messrs Nusrat Elahi and 41 others v. The Registrar, Lahore High Court, Lahore and 68 others 1991 MLD 2546; The Culture of Judicial Independence-Conceptual Foundations and Practical Challenges - Shimon Shetreet and Christopher Forsyth, P.480 (foot note #10); Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Amanullah Khan Yousufzai and others v. Federation of Pakistan through Law Secretary and others PLD 2011 Kar 451; Articles 121 and 122 of the Constitution. Also see Accounting Policies and Procedures Manual, Auditor General of Pakistan P.2.20; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Government of Sindh through Chief Secretary to Government of Sindh Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Accountant-General, Sindh and others v. Ahmed Ali U. Qureshi and others PLD 2008 SC 522; Abdul Rasheed and others v. Province of Sindh and others 2011 PLC (C.S.) 926; The Mt. Scopus International Standards of Judicial Independence: The innovative concepts and the formulation of a consensus in a legal culture of diversity by Shimon Shetreet. The Culture of Judicial Independence-Conceptual Foundations and Practical Challenges, P.475; Judicial Independence: The Contemporary Debate Shimon Shetreet and Jules Deschense eds. 1985. (See P.76 Aharon Barak - The Judge in a Democracy); What is happening to Judicial Independence; Aharon Barak-The Judge in a Democracy) PP.77 and 80; New Law Journal 30-9-1994 at 1306 and 1308; The Business of Judging-Tom Bingham, P.57 and The Culture of Judicial Independence - conceptual foundations and practical approaches - Shimon Shetreet & Christopher Forsyth, PP.20-21 rel.
(b) Constitution of Pakistan---
----Preamble & Arts. 121, 175, 208, 122, 2A, & 199---High Court (Lahore) Rules and Orders, Vol. V, Chap. 10, Part C, R. 17---Constitutional protection of the financial and budgetary autonomy of High Court---Terms and conditions of service of officers and employees of the Superior Courts---Expenditure charged upon Provincial Consolidated Fund---Judicial independence and separation of powers---Scope---Federal Government vide an order of the Prime Minister had allowed an increase in the pay of staff of Superior Judiciary across the Country by granting an enhancement in the judicial and ad hoc allowance, and the same was duly approved and sanctioned by the Lahore High Court in terms of the High Court (Lahore) Rules and Orders, Volume-V---Provincial Government did not honour the said budgetary approval for enhancement of the said allowances---Question before High Court was whether administrative expenses of the High Court, which under the Constitution were an expenditure charged on the Provincial Consolidated Fund under Arts. 121 & 122 of the Constitution, once approved and claimed by the High Court, could be ignored or turned down by the Provincial Legislature or the Provincial Government---Held, that judicial independence was composed of at least five aspects: first non-political appointments to a court; second guaranteed tenure and salary; third executive and legislative interference with court proceedings or office holders; fourth budgetary autonomy; and fifth; administrative autonomy---Constitutionalism of financial autonomy of the judiciary found its roots in the preambular constitutional values which stated that "the principles of democracy...shall be fully observed" and that "independence of judiciary shall be fully secured."---Such values were echoed more substantively in the Objectives Resolution when read with Art.2A of the Constitution and Art.175 of the Constitution reaffirmed independence of judiciary on the basis of separation of powers---Article 208 of the Constitution provided administrative independence and insularity to the judicial branch by empowering the judiciary to appoint its officers and servants on their own terms and conditions of employment and this constituted a separate cadre of judicial administrative staff, distinct from the staff and officers of the Executive or the Legislative Branches of the State---Administrative expenses of High Court formed part of the charged expenditure, which for the purpose of the Province found explanation under Arts.121 & 122 of the Constitution---Provincial charged expenditure was an expenditure met from the Provincial Consolidated Fund, which may be discussed but not submitted to vote in the Provincial Assembly---Financial and budgetary management of the High Court in terms of administrative expenses if left to the Executive or the Legislature would generate a public perception of dependence of the judiciary on the other two branches of the State, which would weaken public confidence reposed in the judicial system and cripple the embodiment of democracy under the Constitution---While judicial independence meant that a judge must decide individual cases free from any extraneous influence, it also required that the judicial branch exercised control and influence over administrative penumbra immediately surrounding the judicial process---Pivotal to independence of the judicial branch was its financial autonomy, not in the sense of constitutionally protected salary structure but also the financial autonomy to budget for the administrative costs for effectively running and managing the judicial branch---Articles 121, 122, 175 & 208 of the Constitution provided construct for self-judicial governance, which rested on foundational pillars like separation of powers, administrative independence and autonomy---High Court (Lahore) Rules and Orders Volume-V regulated appointment and conditions of service of the High Court Establishment and in terms of Art.208 of the Constitution, the only constitutional requirement was that the Governor must approve the said Rules, which was a one-off act---Rule 17 of Chap.10, Part C of the High Court (Lahore) Rules and Orders Volume-V provided that the servants and officers of the High Court shall be entitled to pay and allowances as fixed by the Chief Justice from time to time; and said Rule did not mean that the decision of the Chief Justice fixing pay and allowances of the members of the High Court Establishment would be subjected to the approval of the Governor, which approval was only to the promulgation of the said Rules and not to the decisions of the Chief Justice issued from time to time under the said Rules---Any interpretation of Art.208 of the Constitution and R.17 of the High Court (Lahore) Rules and Orders Vol.-V subjecting decision of the Chief Justice to approval of the Governor would be constitutionally impermissible and would shake the foundational assumption of judicial independence---Art.121(b) of the Constitution extended budgetary and financial control to High Court so that the institution could draw up its own administrative expenses---Administrative expenses of the High Court did not require assent of the Provincial Assembly and expenditure proposed by the High Court therefore, could not be turned down, reduced, or altered by the Executive or the Legislature and no provision existed in the Constitution that authorized the Provincial Executive to delay, reconsider, negotiate, alter or reduce the administrative expenses of High Court which passed as charged expenditure---Once High Court budged its administrative expenses including remuneration (inclusive of any increase for a particular year) the same was to be simply provided in the Annual Budget Statement by the Provincial Government and placed before the Provincial Assembly for discussion and information only---Constitution proceeded on an assumption that the judiciary while determining its administrative expenses would act with the institutional maturity and sagacity it possesses---Financial independence of the judiciary must rest on a professionally structured budgetary system within the judiciary and required meticulous fiscal and budgetary controls with a consultative and deliberative methodology for budget preparation---Consultation with the key stakeholders before finalizing the administrative expenses of the High Court was an unwritten constitutional assumption---Articles 121 & 122 of the Constitution required that the High Court while exercising its budgetary discretion would proceed with fiscal prudence and circumspection---Financial autonomy and budgetary independence in the hands of the High Court had to be nurtured with highest sense of responsibility, level-headedness, judiciousness, transparency and financial foresight and the budgetary process of the High Court must be a collaborative exercise, where comments, suggestions and inputs are solicited from the provincial government, financial experts and other relevant institutions, in order to examine, appreciate and gauge the fiscal and economic conditions and realities of the Province before finalizing the charged expenditure---High Court directed the Provincial Government to release arrears of the enhancement of the judicial and ad hoc allowance to the officers and servants of the High Court after completion of constitutional requirements with effect from the date when such enhancement was made---Constitutional petition was allowed, in circumstances.
Delhi Judicial Service Association (Regd.) v. Government of Nct of Delhi and another 2000(88)DLT 710; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad 1997 PLC (C.S.) 137; Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375; Muhammad Yaqub Butt, Additional Registrar, Lahore High Court v. Government of the Punjab through Chief Secretary and another PLD 1992 Lah. 527; Messrs Nusrat Elahi and 41 others v. The Registrar, Lahore High Court, Lahore and 68 others 1991 MLD 2546; The Culture of Judicial Independence-Conceptual Foundations and Practical Challenges - Shimon Shetreet and Christopher Forsyth, P.480 (foot note #10); Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Amanullah Khan Yousufzai and others v. Federation of Pakistan through Law Secretary and others PLD 2011 Kar 451; Articles 121 and 122 of the Constitution. Also see Accounting Policies and Procedures Manual, Auditor General of Pakistan P.2.20; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Government of Sindh through Chief Secretary to Government of Sindh Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Accountant-General, Sindh and others v. Ahmed Ali U. Qureshi and others PLD 2008 SC 522; Abdul Rasheed and others v. Province of Sindh and others 2011 PLC (C.S.) 926; The Mt. Scopus International Standards of Judicial independence: The innovative concepts and the formulation of a consensus in a legal culture of diversity by Shimon Shetreet. The Culture of Judicial Independence-Conceptual Foundations and Practical Challenges, P.475; Judicial Independence: The Contemporary Debate Shimon Shetreet and Jules Deschense eds. 1985. (See P.76 Aharon Barak - The Judge in a Democracy); What is happening to Judicial Independence; Aharon Barak-The Judge in a Democracy) PP.77 and 80; New Law Journal 30-9-1994 at 1306 and 1308; The Business of Judging-Tom Bingham, P.57; The Culture of Judicial Independence - conceptual foundations and practical approaches - Shimon Shetreet Christopher Forsyth, PP.20-21 rel.
(c) Constitution of Pakistan---
----Arts. 208 & 175---High Court (Lahore) Rules and Orders Vol.-V Chap.10, Part C, Rr. 17 & 22---Officers and Servants of Courts---Rules providing for the appointment by the Court of officers and servants of the Court and for their terms and conditions of employment---Interpretation of Art.208 of the Constitution---Approval of the Governor---Scope---Article 208 of the Constitution provided that the High Court, with the approval of the Governor concerned, may make rules providing for the appointment by the Court of the officers and servants of the Court and for their terms and conditions of employment---Rules that regulated the appointments and conditions of service of the establishment had been provided under Chap.10, Part "C" of the High Court (Lahore) Rules and Orders Vol.V and R.17 of the said chapter provided that members of the High Court Establishment that were its officers and servants, shall be entitled to pay (including special pay) and allowances as fixed by the Chief Justice, from time to time, provided the Rules are approved by the Governor as mandated by the Constitution under Art.208---Only constitutional requirement under the said Art.208 was that the Governor must approve the said rules, which was a one-off act and in line with such constitutional dictate, R.17 of the High Court (Lahore) Rules and Orders Vol.V also required that the Rules must be approved by the Governor---Said Rule does not mean that the decision of the Chief Justice fixing the pay and allowances of the members of the High Court Establishment would be subjected to the approval of the Governor---Approval of the Governor was to the promulgation of the Rules (which was a one-off act) and not to the decisions of the Chief Justice issued from time to time under the said Rules---Any interpretation subjecting the decision of the Chief Justice to the approval of the Governor would be constitutionally impermissible and would shake the foundational assumption of judicial independence, on which rested the democratic architecture of the Constitution---High Court observed that R.22, Chap. 10, Part C of the High Court (Lahore) Rules and Orders Vol.V was simply for the efficient administrative governance of the High Court and the said Rule adopted principles provided under the Civil Service Rules (Punjab) regarding salaries, allowances, leave and pension and in no manner converted or changed the status of the officers and servants of the High Court into that of civil servants or in any manner subordinated the authority of the High Court in such matters to that of the Executive Branch---Article 208 of the Constitution, therefore had no relevance in terms of grant of increase in judicial allowance in the context of the Governor---Governor was not the approving authority regarding the terms and conditions of service of officers and servants of the High Court and in fact the Governor was to simply grant approval to the promulgation of the Rules, which was once in the life time of the said Rules , unless the same were amended---Financial control regarding administrative expenses including remuneration of staff of the High Court vested with the High Court---Grant of an increase in the judicial allowance of officers of the High Court could only be acknowledged as a partial payment of allowances approved by the High Court under Art.208 of the Constitution read with R.17 of Chap.10, Part C of the High Court (Lahore) Rules and Orders Vol.V.
Muhammad Yaqub Butt, Additional Registrar, Lahore High Court v. Government of the Punjab through Chief Secretary and another PLD 1992 Lah. 527 rel.
FOR PETITIONER
Mian Bilal Bashir assisted by Raja Tasawer Iqbal.
FOR RESPONDENTS
Mian Tariq Ahmed, Deputy Attorney General for Pakistan.
Muhammad Hanif Khatana, Advocate-General, Punjab.
Anwaar Hussain, Asstt. Advocate-General, Punjab.
Tariq Mirza, Dy. Secretary, Finance Department, Government of the Punjab, Lahore.
Nadeem Riaz Malik, Section Officer, Finance Department, Government of the Punjab, Lahore.
AMICI CURIAE.
Tanvir Ali Agha, former Auditor General of Pakistan and Waqqar Ahmad Mir:
ASSISTED BY:
Qaisar Abbas and Mohsin Mumtaz, Civil Judges/Research Officers, Lahore High Court Research Centre.
Dates of hearing: 20th, 21st, January, 9th and 10th February, 2015.
JUDGMENT
"The judiciary should not be left in a position of seeking financial and administrative sanctions for either the provision of infrastructure, staff and facilities for the judges from the executive and the State, which happens to be one of the largest litigants.....autonomy is required for an independent and vibrant judiciary, to strengthen and improve the justice delivery system, for enforcing the rule of law."1
SYED MANSOOR ALI SHAH, J.---This case explores the constitutionalism of financial autonomy and budgetary independence of the superior judiciary on the touchstone of the ageless constitutional values of independence of judiciary and separation of powers.
2. Additional Registrar of this High Court has knocked at the constitutional jurisdiction of this Court, raising the question of non-compliance of the executive authority of the Federation by the Provincial Government, as the direction of the Prime Minister to the Provincial Government to enhance the allowances of the staff of the superior judiciary goes unheeded. During the course of hearing, this legal question has snowballed into a far more significant constitutional issue regarding the constitutional protection of the financial and budgetary autonomy of the High Court.
3. The facts are that the Prime Minister in the year 2011 allowed an increase in the pay of the staff of the superior judiciary across the country, by granting them an enhancement of 50% Judicial Allowance and 50% Adhoc Allowance ("Allowances") w.e.f. 1-7-2010. However, more importantly, the matter was also taken up by the Lahore High Court and was duly approved and sanctioned. The inaction and the silent refusal on the part of the Provincial Government to honour the budgetary approval of the Allowances by the High Court is not only violative of the constitutional financial procedures provided under Articles 121 and 122 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") but also corrodes the financial autonomy and as a result the independence of the judiciary which forms the bedrock of our constitutionalism.
4. Learned counsel for the petitioner goes on to submit that under Article 208 of the Constitution, read with Rule 17 of Chapter 10, Part "C" of the High Court Rules and Orders (Vol-V), it is the High Court that determines the remuneration of the staff of the High Court and the only constitutional role of the Provincial Government is to include this amount in the charged expenditure of the Annual Budget Statement and place the same before the Provincial Assembly, where it may be discussed but cannot be put to vote.
5. He also submitted that the officers and servants of the Judicial Branch of the State, in particular, the High Court belong to a separate judicial administrative cadre as envisaged under Article 208 of the Constitution, and are distinct from a civil servant and other employees of the other two branches of the State. This is also so because of the distinct job description, scope of work, working hours and professional responsibilities and cannot be considered at par with the civil servants working in the executive branch of the Province.
6. Learned Advocate General, Punjab submits that the Prime Minister's directive to grant Allowances to the staff of the Lahore High Court is not binding on the Provincial Government. He submitted that under Rule 17 of the High Court Rules and Orders any increase in administrative expenses including increase in remuneration to the officers and servants of the High Court is subject to the approval of the Governor. He referred to an earlier decision of the Governor, communicated to the Registrar of this Court vide letter dated 15-7-2010 issued by the Finance Department, wherein 50% Adhoc Allowance 2010 was announced by the Governor, but was not extended to certain departments and institutions including the judiciary who had already been allowed a similar allowance. He went on to submit that matters pertaining to allocation of finance are policy matters and fall within the domain of the executive, therefore, increase in the administrative expenses of the High Court including remuneration of the officers and servants of the High Court is subject to the approval of the Governor. He, without any supporting evidence, submits that special judicial allowance has already been given to the staff of the Lahore High Court in the past and, therefore, the salaries of the staff of the Lahore High Court are far better than the salaries drawn by staff of the other High Courts.
7. He submitted that, during the course of hearing of this case, Provincial Government has voluntarily agreed to grant 50% Judicial Allowance to the staff of Lahore High Court w.e.f. 1-7-2014 vide Notification dated 4-9-2014 and adds that the Governor has extended this relief under Article 208 of the Constitution.
8. Mr. Waqqas Ahmad Mir, Advocate/learned amicus curiae, submitted that the directions issued in letters dated 26-1-2011 and 1-2-2011 by the Ministry of Law, Justice and Parliamentary Affairs Division, Government of Pakistan are in exercise of the executive authority of the Federation and cannot be turned down by the Provincial Government. He submits that the requisition put up by the Lahore High Court for enhancement of 50% Judicial Allowance and 50% Adhoc Allowance vide letter dated 20-5-2013 to the Provincial Government has received no response and Government is sitting on it since then. He submits that under Article 208 of the Constitution, the High Court Rules have to be approved once by the Governor and thereafter the exercise of power under the said rules by the Chief Justice of this Court is not subject to repeated approvals of the Governor. Any such interpretation would mar the administrative independence vested in the judiciary under Article 208 of the Constitution.
Opinion of the Court
Facts:
9. The Finance Minister, Government of Pakistan made the following recommendation on 19-12-2010:-
"The superior judiciary and its staff may be provided a general increase in Pay and Judicial Allowance at the uniform rate of 50% as made applicable to government servants in the Budget."
Thereafter, the Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan put up a summary before the Prime Minister on 20-12-2010 titled "Increase in the pay and judicial allowance of the Judges and staff of the superior judiciary." The relevant extracts of the summary are as follows:--
"While reviewing the impact of the salary increase in the budget and to firm up the forecasts of pay and allowances for the full financial year (2010-11), it was noticed that the salary increases had not been applied to the Superior Judiciary.
2. An ad hoc relief @ 50% and 100% of basic pay was given to all civil servants and the members of Armed Forces respectively by the government w.e.f. Ist July, 2010. However, no relief has been allowed to the Judges and staff of the superior judiciary so far due to the reasons that they do not fall under the definition of civil servants.
3. Ministry of Finance has agreed that the superior judiciary and its staff may be provided a general increase in pay and Judicial Allowance at the uniform rate of 50% as made applicable to government servants in the budget 2010-11 (Annex-I).
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7. The Prime Minister is requested to approve 50%…
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